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Texas Cheerleaders Take Religious Message Battle to State Supreme Court

A group of Texas high school cheerleaders last week filed a petition with the state Supreme Court over an ongoing dispute about the display of banners with religious messages at high school football games, according to multiple reports.

In Oct. 2012, a state judge issued a temporary injunction allowing cheerleaders at Kountze High School in Kountze, Texas, to continue displaying run-through banners with Bible verses at football games after the school prohibited them from doing so. According to my colleague Mark Walsh, the district, which had received a complaint from the Madison, Wis.-based Freedom From Religion Foundation, said the banners represented school-sponsored speech and thus were not permitted.

District Judge Steven Thomas, however, disagreed. In his order to issue the injunction, he wrote, "If the temporary injunction is not issued, the [school district and superintendent's] unlawful policy prohibiting private religious expression will remain in effect and the plaintiffs will be prohibited from exercising their constitutional and statutory rights at all football games and other school sporting events."

After the trial last May, Thomas again ruled in favor of the cheerleaders, confirming the preliminary ruling he issued the previous fall. "The evidence in this case confirms that religious messages on run-through banners have not created, and will not create, an establishment of religion in the Kountze community," the judge wrote in his decision.

The district appealed the decision, however, after adopting a policy that permitted cheerleaders to display religious messages on banners. Because of the new policy, the Ninth Court of Appeals declared the original ruling moot.

"We find no evidence in the record that under Kountze ISD's new policy, the cheerleaders' speech has been prohibited," the appeals court wrote in its decision. "We conclude the allegedly wrongful behavior has passed and cannot reasonably be expected to recur."

Thus, the cheerleaders are pushing for the state Supreme Court to confirm the original ruling, which would prohibit the district from going back on its new policy. David Starnes, who has represented the cheerleaders since the original Oct. 2012 case, told the Hardin County News that the issue of whether the banners are private speech or government speech has yet to be resolved, which could open the door for the district to begin prohibiting religious messages on the banners at some point in the future.

"The case is not simply about whether (the school district) is currently allowing religious messages to appear on the cheerleaders' banners," the cheerleaders' attorneys wrote in their petition, according to the Associated Press. "Rather, the dispute is whether the speech on the banners is the private speech of the cheerleaders, or government speech of the school. That controversy remains very much alive—because (the district) continues to unconstitutionally treat the cheerleaders' messages on their banners as its own government speech."

According to the Hardin County News, the petition does not guarantee that the state Supreme Court will hear the case. At least one state Supreme Court justice must express interest in taking up the case, which is no sure thing.

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